REPUBLIC v HUDSON WATIMA & 4 others & SRM, KIMILILI COURT [2009] KEHC 2846 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE

Miscellaneous Civil Application 2 of 2008

REPUBLIC .............................................................APPLICANT.

VERSUS

TONGAREN LAND DISPUTES TRIBUNAL COMPRISING:

HUDSON WATIMA & 4 OTHERS ...........1ST RESPONDENT

SRM, KIMILILI COURT ..........................2ND RESPONDENT.

EMMANUEL W. WANYONYI .............INTERESTED PARTY.

JOHN BARASA PLANDU................ EX-PARTE APPLICANT.

R U L I N G.

By an application by way of Notice of Motion dated 15th June, 2009, pursuant to the provisions of sections 8 and 9 of the Law Reform Act and orders LIII Rules 3 and 4 of the Civil Procedure Rules:-

(a)   THAT, this application be certified urgent and the same be heard on priority.

(b)   THAT, this honourable court be pleased to extend time within which to file the application for Judicial Review and the application dated 2/1/2008 be deemed as duly filed.

(c)   THAT, costs be provided for.

The application is based on the grounds.

(a)   THAT, leave was granted to the Applicant on 6/12/2007 to file proceedings for Judicial Review.

(b)  THAT, the Applicants could not file the same for the reason that the offices of his Advocates had been closed as from 21/12/2007 to 2/1/2008 for Christmas Vacation.

(c) THAT, the Applicant had an erroneous impression that the holiday period would not be considered in computation of time.

(d) THAT, the application is made in good faith.

The application is predicated upon the annexed affidavit of JOB BARASA PLANDU sworn on the 15th day of June, 2009 and the statement of particulars dated 4th December, 2007.

For the applicant, it was argued that leave was granted on 6th December, 2007 vide exhibit “JBP 1”.  Copies of the notice and statement of particulars are exhibited as JBP  “2(a)” and JBP “2b” respectively. – Equally copies of verifying affidavit in support of the verifying affidavit filed in support of the application are exhibited as “SBW 3” and “SBW 4” respectively.

The thrust of the applicant’s case is that the Tribunal exceeded its mandate in ordering finalisation of a transaction which is null and void for contravening the provisions of section 6 of the Land Control Act (Cap 302) Laws of Kenya.

The Tribunal erred in law in directing the court to sign mutation and transfer form in excess of its jurisdiction.

The Tribunal failed to accord the applicant with opportunity to present the case before making a final determination contrary to the rules of natural justice.

Last but not least the Tribunals’ award is undated contrary to the mandatory provisions of the Land Disputes Tribunal Act No. 10 of 1990.

By a preliminary objection dated 21st October, 2008 Mr. Kiarie Advocate for the interested party raised a preliminary objection thus;

“TAKE NOTICE that the interested party shall at the hearing hereof raise a preliminary objection and seek an order to strike out the application for judicial Review herein on the grounds that the same is fatally defective and incompetent for having been filed out of time without seeking leave of the court ………”

At the hearing hereof Mr. Kiare for the interested party brought to my attention that there is an application dated 15th June, 2009 seeking to extend time within which to file an application for Judicial Review.  That application, Mr. Kiarie contended, is an admission that the application for judicial Review was filed outside time and without leave of the court.

I have scanned through the said application dated 15th June, 2009.  Having done so, it is clear to me from the grounds in support of the application and the affidavit in support sworn by John Barasa Plandu on 15th June, 2009, that the applicant concedes that the Notice of Motion dated 2nd January, 2008 was filed out of time without leave.

In the premises these preliminary objection is well taken.  In the result the application dated 2nd January, 2008 by way of Notice of Motion is struck out with costs to the interested party.

Dated and delivered at Kitale this 1st day of July, 2009.

N.R.O. OMBIJA.

JUDGE.

Mr. Kiarie for interested party.

N/A for Applicant/exparte.